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2d 539
The facts are not in dispute. At about 10:00 a. m. on February 18, 1978, two
persons in a Honda automobile approached the drive-up window of the Aurora
National Bank of Aurora, Colorado. Three female bank employees were on
duty at that facility. Ann Marie Wagner was a teller at the drive-up window
from which a push-pull drawer was operated. When the Honda automobile
stopped at this window the drawer was extended and the driver of the
automobile placed therein a green zippered bag which was then retrieved by
Miss Wagner. In opening the bag she found a note which stated, "This is a
robbery. There is dynamite in here." The note also demanded a specific sum of
money amounting to more than $5,000. Miss Wagner also observed in the bag
two objects bound together with red tape from which wires were extended,
which appeared to her to be sticks of dynamite. A fuse was also observed in the
bag. Miss Wagner advised the other two employees in the facility of the
robbery and requested one of them to activate the police alarm system. She then
gathered several hundred dollars in currency, placed the money in the zippered
bag, and returned it with its contents to the driver. The car was driven away
before the police appeared. Sometime later Shannahan was identified as the
driver of the automobile and was placed under arrest. At the trial there was no
evidence that the material in the bag was dynamite or that it was capable of
causing injury to anyone.
Subsections (a) and (d) of Section 2113, Title 18, United States Code, are as
follows:
Relying on Bradley v. United States, 447 F.2d 264 (8th Cir. 1971), it is argued
that to come within the aggravated provisions of Section 2113(d) it must be
shown that the individual accused of bank robbery not only intended to create a
reasonable apprehension on the part of a victim, but, in addition, it must be
shown that there was an actual capability to cause death or physical harm. This
was the holding in the Bradley case. The Sixth Circuit, in United States v.
Beasley, 438 F.2d 1279, cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d
110 (1971), reached the opposite conclusion. The facts in Beasley are
substantially the same as those in the instant case. The only difference is that in
Beasley it was later discovered that the object in the bag delivered at the bank's
drive-up window was harmless. In finding that the requisite elements of the
aggravated offense were present, the court stated:
7
In United States v. Waters, 461 F.2d 248, cert. denied, 409 U.S. 880, 93 S.Ct.
207, 34 L.Ed.2d 134 (1972), this court considered evidence necessary to sustain
a conviction under Section 2113(d). The Bradley and Beasley cases were
discussed, but the court was not required to reject either the Bradley or Beasley
conclusions as it was found that there was sufficient evidence to sustain the
conviction under either theory. Later, in United States v. Marx, 485 F.2d 1179,
1185 (1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974),
a fake bomb case, this court, in affirming a conviction, and citing Beasley as
authority, said:
10
11
defendant is shown:
12 to have created an apparently dangerous situation, (b) intended to intimidate his
(a)
victim to a greater degree than the mere use of language, (c) which, does in fact,
place his victim in reasonable expectation of death or serious bodily injury. . . .
13
This court again followed the Beasley definition of "jeopardy" in United States
v. Moore, 487 F.2d 414 (1973). See also United States v. Cooper, 462 F.2d
1343 (5th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 452, 34 L.Ed.2d 303
(1972), a fake bomb case; cf. United States v. McAvoy, 574 F.2d 718 (2d Cir.
1978); United States v. Amos, 566 F.2d 899 (4th Cir. 1977); United States v.
Harris, 530 F.2d 576 (4th Cir. 1976).2
14
Finally, Shannahan contends that the court erred in not permitting the defense
to use, on cross-examination, an F.B.I. agent's reports of a witness' prior
statements made during interviews. The reports were not signed, or otherwise
adopted or approved, by the witness. The F.B.I. reports did not come within the
rule authorizing the use of prior statements, and the court did not err in refusing
to permit their use on cross-examination. 18 U.S.C. 3500(e); Goldberg v.
United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976); Palermo v.
United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); United
States v. Swindler, 476 F.2d 167 (10th Cir.), cert. denied, 414 U.S. 837, 94
S.Ct. 183, 38 L.Ed.2d 72 (1973); Ayash v. United States, 352 F.2d 1009 (10th
Cir. 1965).
15
AFFIRMED.
the Court was concerned with the issue of sentencing under 18 U.S.C. 2113
and 924 where the conduct of defendants was in violation of both statutes. The
Court took occasion to resolve a conflict in lower courts in the application of
the phrase, "by the use of a dangerous weapon or device," used in Section
2113(d). The Court adopted the reasoning of Judge McCree in his dissent filed
in the Beasley case, supra, 438 F.2d 1279. It was held that the phrase, "by the
use of a dangerous weapon," must be read to modify both the assault and
putting in jeopardy provisions of Section 2113(d). This decision does not affect
the issue in the instant case